Locklund v. Burman's Estate

146 Mich. 233 | Mich. | 1906

Moore, J.

Mr. Burman died February 11,1905. The plaintiff presented, as a claim against the estate of Mr. Burman, a note for $308, dated May 14, 189?, payable on demand. There was on the back of the note the following indorsement:

“ Received on the within note the sum of twenty-five dollars, this 13th day of April, 1903.

“Magnus Locklund.

“ By John Locklund,

“ His agent and attorney in fact.”

The case was appealed to the circuit court where the judge directed a verdict for the plaintiff. Upon the trial it appeared that John Locklund had a written power of attorney authorizing him, among other things, to receive and collect all debts due the plaintiff. It is claimed that, by virtue of such authority, John Locklund received from Mr. Burman $25, and at the same time made the indorsement on the note. The attorney for defendant discredits this claim. John Locklund testified to making the collection and indorsement. They were not shown in any other way. This testimony was objected to because, in making the collection and indorsement, John Locklund was acting as the agent of his brother, and was therefore incompetent to testify, as Mr. Burman was dead. Counsel are agreed that the only question involved is .whether it was error to receive this testimony. The statute, so far as is important here, Act No. 30 of the Public Acts of 1903, reads:

“No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness in any suit involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract against the legal representatives or heirs of such decedent, unless he shall be called by such heirs or legal representatives.”

Counsel for the appellee insists, and the learned trial judge entertained the same opinion, that the statute does not apply to this case. We quote from the brief:

“If John Locklund, agent and attorney of Magnus Locklund, the plaintiff in this case, made a new contract with Mr. Burman, the deceased,- on behalf of the plaintiff, or did some act which continued an existing contract between the plaintiff and the deceased, he certainly would be barred from testifying, but I contend that he did neither of these two acts. He certainly made no new contract in receiving a payment on the promissory note and he did not continue an existing contract because, without the payment, it would have continued in force for a period of one year and over.”

We do not agree with counsel. It is true that at the time it is claimed the payment was made, the statute of limitations had upwards of a year to run before the note would be outlawed. It is equally true that at the time the note was presented as a claim against the estate, more than six years had elapsed since the note came due, and unless the payment about which John Locklund testified had the effect of continuing the original contract the statute of limitations could be successfully pleaded at the time the note was presented as a claim. Had Mr. Bur-man made the payment to Magnus Locklund no one would claim the latter could testify. The payment not having been made to the principal but to his agent, is it not clear the agent is also disqualified from testifying ? We think John Locklund was prohibited by the statute from testifying to those things which were within the knowledge of Mr. Burman. The case is controlled by the principles stated in Michels v. Underwriters’ Ass’n, 129 Mich. 422; De Mary v. Burtenshaw’s Estate, 131 Mich. 328; Gustafson v. Eger, 132 Mich. 388; Wood v. Kaufman, 135 Mich. 6; Albring v. Ward, 137 Mich. 352; Finn v. Sowders’ Estate, 139 Mich. 623.

Judgment is reversed, and new trial ordered.

Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.